• Journal of Arbitration Studies
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• v.9 no.1
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• pp.161-182
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• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.65-84
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• 1999

During the past few decades, we have witnessed three approaches to overcome the legal disparities between trading countries: - determining the individual governing law in accordance with the conflict of laws principle; - unifying and harmonizing private international law into uniform rules and substantive laws under the auspices of ICC, UNCITRAL, UNIDROIT and various NGOs ; and - drafting model laws like the UNCITRAL Model Law on Electronic Commerce and promoting member countries to enact them. Against this backdrop, the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the process by which it was adopted, established the benchmark for the unification of commercial law. The CISG, completed in 1980, merged civil and common law concepts and came into force in 1988 after a certain number of countries endorsed the treaty. Besides the CISG, the U.N. Limitations Convention and the UNIDROIT Principles of International Commercial Law, to name a few, have attempted to set cross-border legal norms and standards in the international business transactions. However, since the advent of computer-based commerce, there have emerged all-out efforts to establish uniform rules before national legal systems have been developed. As a consequence, the Model Law on Electronic Commerce has become a specimen legislation covering functional equivalents of paper-based writing and signature. For the credit enhancement exemplified by the Uniform Rules for Demand Guarantees (ICC Publication No.458), the UNCITRAL prepared the U.N. Convention on Independent Guarantees and Stand-by Letters of Credit, which was adopted by the U.N. General Assembly in 1995 but remains still not effective as only two countries have ratified this treaty so far. In this connection, two draft conventions underway at UNIDROIT and UNCITRAL deserve our attention as the probability of unification in the Korean Peninsula is mounting. They are to create security interests for commercial finance in moveable equipment and accounts receivable. The UCC-type security rights are regarded to be useful to enable the North Koreans with limited properties to borrow from the banks.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.3-34
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• 2013

In the international sales contract, long-term contracts often face hardship in fulfilling the original contract terms by relevant parties due to rapid change and uncertainty of political and economic circumstance. In this case, party who faces hardship of fulfillment terminates contract or demands adaptation to contract condition but if opponent doesn't accept this, it proceeds to commercial dispute needing legal interpretation. Generally it is wise to set forth governing law in contract between parties in the case of international contract, for legal stability. One of universal governing law which relevant parties select by agreement to solve economical hardship of fulfillment is PICC. PICC defines the hardship in detail for renegotiation on following hardship of fulfillment unexpected. In the case of failing renegotiation, Court(arbitral tribunal) conducts termination to contract or adaptation to contract condition through arbitration or mediation. In conclusion, when signing international long-term contract, it is desirous to handle dispute effectively by inserting provisions which can deal with economical hardship in contract or defining PICC as governing law in the case of hardship incurred. It is because it is realistic to handle dispute smoothly to the extent that both parties can be satisfied in the case of hardship incurred, though international contract should be fulfilled.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.131-155
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• 2011

PICC executes its role as a useful lex mercatoria in the continuously increasing international trade to be adopted as the standard criterion of prevention or dispute resolution. When considering the fact that GISG has not presented results beyond expectation in the past due to hard laws and legal deficiency, PICC, which possesses interpretation and supplementation function, is considered undoubtedly useful particularly in international commercial arbitration. As observed in the previously mentioned analysis on cases accumulated in UNILEX, PICC application and Arbitral tribunal in international contract between parties possess considerably large claim possibility and the number of actual application cases is continuously increasing. The fact that PICC has been composed as maximum common measures of continental and common law systems by traditional comparative legal scholars familiar with international trade can function as the fundamental principle in future global trade activity and can also act as the model law for uniting contract laws of nations. In this aspect, PICC can be evaluated to have considerably achieved enactment purpose of previous intention. However, additional topics that had not been accepted in the revised edition of PICC remain as assignments requiring solution, such as analysis and acceptance problem of comparative law, PR of PICC unfamiliar even to the relative parties of international trade and application in international contract, and absorption problem as model law in various domestic laws.

• Management & Information Systems Review
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• v.7
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• pp.451-462
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• 2001

국제물품매매계약은 당사자간의 합의에 의해서 이루어진다. 그러나 국제간의 물품매매에 관련하여 모든 상황을 특정계약에 반영하는데는 한계가 있다. 따라서 특정계약에 대한 해석과 판단의 기준이 되는 하나의 보편적이며 합리성에 기초를 둔 준거법이 필요하게 된다. 이러한 준거법은 어느 특정국가의 사범으로 충분할 수도 있지만 국제거래가 안전하고 원활하게 실행되기 위해서는 그것이 세계 어느 나라에 있어서도 같은 내용의 통일적인 법에 의하여 규율되는 것이 바람직하다. 특히 경제적 합리성에 기초를 둔 거래법의 분야에서는 이론적으로 법의통일은 가능하며 실제적으로는 로마의 사법통일협회(UNIDROIT)나 국제연합 국제상거래위원회(UNIDROIT)에 의하여 지금까지 어느 정도 통일사법 제정의 필요성이 꾸준히 제기 되어 왔다. 이러한 목적을 수행하기 위하여 UNICITRAL(국제연합 국제상거래위원회)이 1980년에 발표한 국제물품매매계약에 관한 UN 조약-비엔나협약(CISG)은 국제간의 물품매매에 관한 계약법으로서 중요한 역할을 수행하고 있다. 비엔나협약(CISG)의 법리적인 근거는 "자주적인 준거법의 제정 및 그 적용상의 통일성"에 있다는 것이다. 또한 그 내용을 보면 첫째, 지역적 의미를 가지는 법률용어의 사용을 피하고 대신 격지간의 계약시 실제로 발생하는 현실적 사례의 관점에서 법안을 작성하고자 하였고 둘째, 그 내용을 달리하고 있는 각국의 사법을 통일하는 것에 의해 모든 사법적 법률관계에 같은 내용의 사법을 적용하는 방법, 즉 세계통일사법의 제정이라 하겠다. 본 연구는 비엔나협약(CISG)의 입법취지와 배경을 고찰하였으며 또한 통일사법으로서 협약상의 "일반원칙의 통용"을 계약성립(Formation of Contract)의 과정별로 정리하였다.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.2
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• pp.29-65
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• 2012

Der neue strukturelle Ansatz der Kommbination eines Rahmen$\ddot{u}$bereinkommens und eines ausr$\ddot{u}$stungsspezifischen Sonderprotokolls bedingt einen neuen organisatorischen Anstz f$\ddot{u}$r die Zusammenarbeit zwischen internationalen Organisationen bei der Schaffung von internationalem Einheitsprivatrecht. So haben hier zwei internationale Organisationen gemeinsam die Verantwortung f$\ddot{u}$r einmultilaterales $\ddot{U}$bereinkommen $\ddot{u}$bernommen: auf der einen Seite UNIDROIT als die internationale Organisation, die generell f$\ddot{u}$r die Vereinheitlichung des Privatrechts kompetent ist; auf der anderen Seite ICAO als die f$\ddot{u}$r die private Luftfahrt zust$\ddot{a}$ndige internationale Organisation. Dieses neue, f$\ddot{u}$r die Luftfahrzeugausr$\ddot{u}$stung praktizierte organisatorische Modell eines joint venture zweier internationaler Organisation bei der Einheitsrechtsetzung, namlich die Betreuung eines allgemeinen privatrechtsvereinheitlichenden Rahmens$\ddot{u}$bereinkommens durch UNIDROIT und die Wahrnehmung der sektorspezifischen Belange in einem ausr$\ddot{u}$stungsspesifischen Sonderprotokoll durch die jeweils zust$\ddot{a}$ndige internationale Spezialorganisation, hat bereits f$\ddot{u}$r die Sektoren der Eisenbahn- und Weltraumausrustung Schule gemacht. Das in Kapstadt beschlossene v$\ddot{o}$lkervertragliche Regelungswerk hat erstmals ein einheitsrechtliches - grunds$\ddot{a}$atzlich weltweite Geltung anstrebendes - Sicherungsrecht geschafen. Dies kann f$\ddot{u}$r die Sachenrechtsintergration einen $\ddot{a}$hnlichen Durchbruch bedeuten, wis das Wiener UN-kaufrechts$\ddot{u}$bereinkommen von 1980 f$\ddot{u}$r das Schuldvertragsrecht. Voraussetzung daf$\ddot{u}$r ist allerdings die juristische Qualit$\ddot{a}$t und Praxisgerechtigkeit des Regelungswerkes und - insbesondere - das Funktionieren des Registersystems. Von wesentlicher Bedeutung f$\ddot{u}$r den Erfolg des $\ddot{U}$bereinkkommens wird auchsein, ob es Rechtssicherheit zu gew$\ddot{a}$hrleisten vermag.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.69-81
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• 2000

Under the co-sponsorship of UNIDROIT and I.C.A.O., a preliminary draft Convention on International Interests in Mobile Equipment and a preliminary draft Protocol on Matters Specific to Aircraft Equipment has been prepared. The purpose of the Convention is to provide for the creation and effect of a new international interest in mobile equipment. The Convention's approach is quite novel in that it purports to create an international interest based upon the convention itself. The Convention is intended to be supplemented by Protocols, each of is intended to provide equipment-specific rules necessary to adapt the rules of the Convention to fit the special pattern of financing for different categories of equipment. To date, two sessions of governmental experts were held in Rome and Montreal. Korean delegations attended the two sessions. One of the members of the Korean delegation published a report on the first session. He expressed his objection to the so called self-help remedy contemplated by the current preliminary draft of the Convention which enables the holder of a security interest to repossess and dispose of the subject of the security interest by private sale rather than public auction on the occurrence of an event of default of the debtor. His view is based upon his understanding that under Korean law, the only remedy available to the holder of a security interest in mobile equipment, such as an airplane, is to apply to the competent court for a public auction. In my view, his understanding is not quite correct and is inconsistent with the current practice in Korea. Under Korean law, the parties' agreement for private sale is in principle valid unless there is an interested party who has acquired a security interest after the creation of the prior security interest or a creditor who has caused the subject of the security interest to be attached by a competent court. In this article, I discuss the current Korean law and practice relating to the enforcement of security interests by private sale in more detail.

• Journal of Korea Trade
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• v.24 no.1
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• pp.113-130
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• 2020

Purpose - This paper examines the legal standards for the interpretation of contract terms in the UNIDROIT Principles of International Commercial Contracts (PICC) and the cases thereunder in order to provide academic implication to promoting an appropriate understanding of this topic in practical business. Design/methodology - This article uses the literature research and case study under the PICC. Findings - the contract terms shall be interpreted according to the common intention of the parties. If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances. The statements and other conduct of a party shall be interpreted according to that party's intention if the other party knew or could not have been unaware of that intention. If not, the reasonable person standard will apply. In applying above articles, all relevant circumstances including the conduct of the parties, practices and usages shall be considered. Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear and contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect. Where contract terms supplied by one party are unclear, contra proferentem rule applies. Where there is discrepancy between several equally authoritative versions of a contract, a preference is given to the interpretation according to the version originally drawn up. Where the parties to a contract have not agreed regarding an important term for their rights and duties, a term which is appropriate in the circumstances shall be supplied. Originality/value - This article examines various cases regarding the topic that were determined under the PICC. By finding legal standards and rulings of relevant cases, this article will help readers in practical business to enhance the ability to apply the provisions to their contracts.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.3-22
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• 2003

The CISG has been effective since January 1,1988. Even if both parties of international sales contract are located in ratifying countries, the CISG does not apply to certain excluded transactions. The CISG does not apply if the parties have opted out of the CISG. When the parties opt out, they usually agree on the law that is to replace the CISG. In the context of international sales, the frequent and difficult choice of law problems will arise when the CISG applies to a transaction but does not resolve all the legal issues before the tribunal. So this article deals with the question. What should we select the applicable law in such situations? (1) For products liability issues excluded from the CISG by article 4 and 5, the court should apply the substantive law of the market state and the statute of limitations law of the forum, (2) For validity issues excluded from the CISG by article 4(a). the court should apply the UNIDROIT Principles when its rules resolve the issue.

• The Korean Journal of Air & Space Law and Policy
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• v.22 no.1
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• pp.125-162
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• 2007

The Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment were adopted on 16 November 2001 at a diplomatic conference held in Cape Town under the joint auspices of UNIDROIT and ICAO. The entry into force of the Cape Town Convention and Protocol have occurred on 1 March 2006. The Cape Town Convention and Protocol provides an international legal regime for the creation, perfection and priority of security, title retention and leasing interests in aircraft equipment, which will be underpinned by an international registry. The purpose of this paper is to explain the objectives and principles of the Cape Town Convention and Protocol, to review the provisions relating to the international interests in aircraft equipment and international registry for their protection under the Cape Town Convention and Protocol, and to discuss the Issues on Korea's accession to the Cape Town Convention and Protocol. As the anticipated results of this paper, it will contribute to facilitate the financing of the acquisition and use of aircraft equipment of high value or particular economic significance in an efficient manner, and to save very large sums of money annually in financing charges, also the international interests in aircraft equipment will be recognized and protected universally.